District’s alleged disregard of bullying supports parents' 504 and ADA claims

     In Sutherlin v. Independent School District No 40 of Nowata County Oklahoma 113 LRP 20535 (N.D. Okla. 05/13/13), the U. S. District Court of Northern Oklahoma ruled that the parents of a 13-year-old boy with Asperger’s disorder and a learning disability could sue the school district under Section 504 and the Americans with Disabilities Act (ADA) because the boy was subjected to disability based bullying and harassment. The parents claimed that between 2010 and 2012, they reported 32 incidents to the school district of other students physically assaulting their son and mocking him about his difficulties with socialization. The parents also reported that other students called the boy names including the R word, crazy, creepy, and freak. The parents alleged that the school district failed to investigate these incidents or take further action to prevent future bullying.

     In court the school district argued that the parents had not shown that the harassment by other students was disability based or that the school district was deliberately indifferent to the harassment. The court, drawing from other cases, set out a five point test for establishing a claim under 504 and the ADA for disability-based student- on- student harassment.

1. 
   The student is an individual with a disability;
2. 
   He or she was harassed based on the disability;
3. 
   The harassment was sufficiently severe or pervasive that it altered the condition of his or her education and created an abusive educational environment;
4. 
   The school district knew about the harassment, and
5. 
   The school district was deliberately indifferent to the harassment. 

     Here, the school district agreed with the five point test, but disagreed that the parents had shown that the harassment was disability based or that the district was deliberately indifferent to it. The court, however, determined that the name-calling and mocking, if true, was sufficient to show disability based harassment. Moreover, the parents had alleged several instances in which the school district did not take action to cease or prevent the bullying behavior. The court stated, if the allegations were true, they showed deliberate indifference by the school district. Thus, the court denied the school district’s motion to dismiss the parents’ 504 and ADA claims and the disability based harassment case will move on.